{"id":1193,"date":"2023-12-14T18:23:47","date_gmt":"2023-12-14T12:53:47","guid":{"rendered":"https:\/\/xpertslegal.com\/blog\/?p=1193"},"modified":"2023-12-14T18:23:47","modified_gmt":"2023-12-14T12:53:47","slug":"supreme-court-upholds-the-abrogation-of-article-370-by-the-president-of-india","status":"publish","type":"post","link":"https:\/\/xpertslegal.com\/blog\/supreme-court-upholds-the-abrogation-of-article-370-by-the-president-of-india\/","title":{"rendered":"Supreme court upholds the abrogation of Article 370 by the President of India"},"content":{"rendered":"

IN RE: ARTICLE 370 OF THE CONSTITUTION<\/strong><\/h1>\n

Writ Petition (Civil) No. 1099 of 2019<\/p>\n

(5JB, CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant JJ.)<\/p>\n

Facts:<\/u><\/strong> Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b). These orders have the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 20191 which bifurcated the State into two Union territories. The petitioners have challenged the constitutionality of these actions.<\/p>\n

Issue:<\/u><\/strong> Whether the abrogation of Article 370 by the President in exercise of the power under Article 370(3) is constitutionally valid?<\/p>\n

Arguments on behalf of counsel for petitioners:<\/u><\/strong><\/p>\n

The Governor\u2019s Proclamation under Section 92 of the Constitution of Jammu and Kashmir dated 20 June 2018 is challenged as being void. The mandatory pre-condition of the satisfaction of the Governor that the State government cannot be carried out in accordance with the provisions of the Constitution, was not fulfilled.It was a political act, in violation of the Constitution, brought about with the intention to ultimately abrogate Article 370. Governor\u2019s rule was imposed on 20 June 2018, a day after the Bharatiya Janata Party withdrew from the coalition on 19 June 2019. No opportunity was afforded to the other parties to demonstrate strength in the house. Other parties \u2013 the Congress, the PDP and the National Conference \u2013 had, in a fax to the Governor expressed willingness to form a coalition. It was incumbent upon the Governor to reach out to the parties and explore the possibilities of forming a government. Section 92 of the Jammu and Kashmir Constitution envisages a mandatory maximum period of six months of Governor\u2019s rule, which cannot be extended any further.<\/p>\n

Arguments on behalf of counsel for respondents:<\/u><\/strong><\/p>\n

The process of constitutional integration of Jammu and Kashmir bears all the resemblance with the process of constitutional integration of various territories of India, namely democratization combined with merger of small states, formation of union of states, the idea of having constituent assemblies for framing constitutions, etc. There was no distinct or special compact between Union of India and Jammu and Kashmir as far as the constitutional integration process was concerned. It was open to the President to take a final stock of the exercise of the authority under Article 370(1)(d), and to decide as to whether there is a need of updating exercise at all, or there is a need for any other invocation of Article 370(1)(d). This power of the President is not limited or conditioned by any practice in relation to Article 370 in the past. Article 370 was conceived and designed to aid the constitutional integration process on the same lines as it happened with other states. Its continued exercise over a period cannot be seen as a cloud over or distortion of its original purpose. Border states are a distinct class of territories and their reorganisation under Article 3 ought to receive distinct consideration. Neither asymmetrical federalism nor any other federal features have been infringed.<\/p>\n

Held:<\/u><\/strong> The court while upholding the constitutional validity of the abrogation of Article 370 held that:<\/p>\n

    \n
  1. The State of Jammu and Kashmir does not have \u2018internal sovereignty\u2019 which is distinguishable from the powers and privileges enjoyed by other States in the country. Article 370 was a feature of asymmetric federalism and not sovereignty;<\/li>\n
  2. The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist. The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required.<\/li>\n
  3. We uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State.<\/li>\n<\/ol>\n

    The court further directed that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024 and that the Restoration of statehood shall take place at the earliest and as soon as possible.<\/p>\n\n","protected":false},"excerpt":{"rendered":"

    IN RE: ARTICLE 370 OF THE CONSTITUTION Writ Petition (Civil) No. 1099 of 2019 (5JB, CJI DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant JJ.) Facts: Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional […]<\/p>\n","protected":false},"author":1,"featured_media":1195,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[138,136,137],"class_list":["post-1193","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-judgement","tag-138","tag-article-370","tag-indian-constitution"],"_links":{"self":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts\/1193","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/comments?post=1193"}],"version-history":[{"count":1,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts\/1193\/revisions"}],"predecessor-version":[{"id":1196,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts\/1193\/revisions\/1196"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/media\/1195"}],"wp:attachment":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/media?parent=1193"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/categories?post=1193"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/tags?post=1193"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}